Judges as Advicegivers

Stanford Law Review, Vol. 50, 1998

Posted: 4 Jan 1998


Since Bickel, the Court has been understood as having a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. This Article contends that there is a fourth power for courts, called advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, unconsciously at times, consciously at others, and this Article reveals some of these instances and seeks to provide a normative justification for the practice. The Article breaks down advicegiving into several categories, and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for coordinate branches, while also serving goals of federalism, enhancing political accountability, and encouraging judicial honesty.

The Article begins with a historical discussion of advicegiving, centering largely on the Founding. It then goes through four main examples from the 1996 Supreme Court Term, and contrasts those cases with several others. In each of the four cases, I criticize the majority for ignoring the model, and use the case to show how advicegiving could have enhanced structural fidelity and governmental functioning. In Clinton v. Jones, I argue that the Court should have asked Congress for a clear statement about the meaning of the relevant statutes. In the right-to-die case Quill v. Vacco, I argue that before stepping into the controversy on its own, the Court should have asked the New York state courts to resolve the thorny questions about the meaning and reach of the state statute. By seeking a state court determination, the Court could have planted the seeds of a productive federal-state conversation about the state statute. In the death penalty case Gray v. Netherland, I show how federal courts can single out particularly egregious death penalty cases and call on governors to review them for commutation. This strategy is particularly appropriate when procedural bars are lurking in the case; a court opinion can explain those procedural bars, thus preventing state officials from hiding behind the imprimatur of a court's decision not to interfere with an execution. In the last case, United States v. Printz, I explain why courts that strike down legislation should provide blueprints of constitutional methods to achieve the same policy goals. Each of these cases illustrates a separate type of advicegiving, and reveals some of the virtues of the model. The Article concludes by considering some of the objections to advicegiving, and explains why advicegiving is a viable alternative to the Court's other powers in appropriate cases.

Suggested Citation

Katyal, Neal K., Judges as Advicegivers. Stanford Law Review, Vol. 50, 1998, Available at SSRN: https://ssrn.com/abstract=47679

Neal K. Katyal (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9807 (Phone)
202-662-9410 (Fax)

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